DPP v Robinson - [2000] VSCA 190

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 104 of 2000

DIRECTOR OF PUBLIC PROSECUTIONS

PAUL ALLAN ROBINSON

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JUDGES:	PHILLIPS, C.J., CHARLES and CALLAWAY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 September 2000
DATE OF JUDGMENT:	21 September 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 190

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Criminal law – Sentencing – Publishing a misleading written statement as a director –
Respondent “discharged without conviction” – Director’s appeal – Seriousness of offence – Personal circumstances of respondent – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J.D. McArdle, Q.C.	P.C. Wood, Solicitor for Public Prosecutions
For the Respondent	Mr. R. Richter, Q.C. and Mr. P.G. Lacava	Rockman & Rockman

PHILLIPS, C.J.:

I shall ask my brother Callaway to give the first judgment.

CALLAWAY, J.A.:

On 5th April 2000 the respondent pleaded guilty to six counts of publishing a misleading written statement as a director, contrary to the provisions of s.85(1) of the Crimes Act 1958. The maximum custodial penalty for that offence at the relevant time was seven years' imprisonment. It matters not that, on the hearing of the plea, the learned sentencing judge was informed by both sides that it was seven-and-a-half years' imprisonment. After hearing that plea and reserving his decision, his Honour decided that the appropriate disposition was that the respondent be discharged without conviction. The appeal before us, which is brought by the Director of Public Prosecutions pursuant to s.567A of the Crimes Act, was argued on the footing that the order his Honour made was pursuant to s.76 of the Sentencing Act 1991.

The principles applicable to Crown appeals are not in contention. To the authorities cited by counsel may be added Lowndes v. R.[1], especially at [15] and, not irrelevantly to the present case, [38] to [40].
[1](1999) 195 C.L.R. 665

There are five grounds in the notice of appeal but Mr McArdle advanced three contentions which go to its heart. The first is that the sentence (they are, of course, separate sentences but for convenience I shall refer to "the sentence") is of such manifest inadequacy as to constitute an error in principle. The second is that the sentence is so disproportionate to the seriousness of the crime as to shock the public conscience. The third is that this case may furnish the Court with an opportunity to provide guidance concerning occasions when a sentencing judge or magistrate should or should not record a conviction.

The plea was conducted on agreed facts, which are set out at the beginning of the learned judge's sentencing remarks. I shall not repeat them. His Honour's reasons thereafter fall into three parts. First, he accepted a submission made on behalf of the respondent that these were unusual examples of the offence in question and gave five reasons why that was so. Some of the reasons given are explicable only in the light of exchanges on the plea; others are, with respect, debatable. But there is no gainsaying his Honour's…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Robinson

Details

AGLC: Director of Public Prosecutions v Robinson [2000] VSCA 190
Case: [2000] VSCA 190
Decision Date: 21 September 2000

CaseChat Overview and Summary

In the case of DPP v Robinson, the respondent, a director, appealed against his sentence of being discharged without conviction for publishing a misleading written statement. The nature of the dispute was whether the sentence was appropriate, considering the seriousness of the offence and the personal circumstances of the respondent. The court of appeal reviewed the matter to determine if the lower court had erred in its sentencing decision.

The primary legal issue was whether the primary judge had erred in considering the respondent's discharge without conviction as an appropriate sentence. The court considered the seriousness of the offence, which involved misleading statements published by the respondent in his capacity as a director, and the personal circumstances of the respondent. It was necessary to determine if the sentence adequately reflected the gravity of the offence and if the respondent's personal circumstances warranted a lesser sentence.

The court of appeal held that the primary judge had not erred in imposing a discharge without conviction. The court found that the seriousness of the offence was not so great as to warrant a conviction, and the respondent's personal circumstances did not warrant a lesser sentence. The court held that the primary judge had exercised their discretion correctly in imposing the sentence, and dismissed the appeal. As a result, the respondent was discharged without conviction, and no further orders were made.

Orders